May 17, 2011

Democrats Push to Confirm Appeals Court Nominee Goodwin Liu

Updated at 7:09 p.m.

Goodwin Liu's bid for a federal judgeship is headed for a crucial vote this week, in what will likely be the biggest fight yet over any of President Barack Obama's nominees for the lower federal courts.

Senate Majority Leader Harry Reid (D-Nev.) moved tonight to bring debate on Liu’s nomination to a close, setting up a vote possibly on Thursday. The motion needs the support of 60 senators to pass. The Democratic caucus controls 53 seats, so they would need Republican help to defeat a filibuster.

Reid considered a similar move to end debate on Liu’s nomination at least once before, in November, before backing off. But in recent weeks, Senate Democrats have turned their attention to pushing through other Obama judicial nominees who faced tough opposition, including Edward Chen and John “Jack” McConnell Jr. for federal district court. McConnell survived an attempted Republican filibuster, and the Senate has not voted down any of Obama’s judge picks.

Reid, whose state is part of the 9th Circuit, framed the debate over Liu in terms of the 2005 compromise by the Senate’s “Gang of 14.” That bipartisan coalition ruled out filibusters of judicial nominees except in cases of “extraordinary circumstances.”

“The nomination before us is not one of those cases,” Reid said on the Senate floor. “The only extraordinary things about Goodwin Liu are his experience, his accomplishments and his integrity.”

Liu’s nomination battle could be the toughest yet under Obama, for several reasons. He has been mentioned as a potential future Supreme Court nominee, and the court he’s been nominated to, the U.S. Court of Appeals for the 9th Circuit, has a reputation as among the most liberal courts in the nation. Liu’s résumé also stirs passions.

“Unless there’s a surprise Supreme Court vacancy this year, this is the big fight of the year,” said Curt Levey, executive director of the conservative Committee for Justice. Levey and many other conservatives argue that Liu is an extraordinary circumstance.

A law professor and associate dean at the University of California at Berkeley, Liu has won praise from liberal legal activists, many Democratic senators and some Republican lawyers for his academic credentials. He was a Rhodes Scholar and clerked for Justice Ruth Bader Ginsburg.

Nan Aron, president of the liberal Alliance for Justice, said she and other activists have waited with anticipation for a Senate vote since Obama nominated Liu in February 2010. “There’s been a lot of activity and a lot of work done by him and other organizations to secure a successful vote whenever it’s taken up,” Aron said.

For Republicans, Liu’s nomination presents a chance to do to an Obama nominee what Senate Democrats did to several of President George W. Bush’s choices: block him with a filibuster or the threat of one. Some senators still mention often the name of Miguel Estrada, the Gibson, Dunn & Crutcher partner who withdrew after Democrats repeatedly filibustered his nomination for the D.C. Circuit.

Among those pushing for a filibuster is Edward Whelan, president of the conservative Ethics and Public Policy Center. “For the reasons that I have explained, I believe that the Liu nomination is one that Senate Republicans — together, one hopes, with a few sensible Democrats — must work to defeat,” Whelan wrote on National Review Online today.

Conservatives have presented an array of criticisms of Liu. They say Liu, 40, lacks enough experience for the federal bench, having spent only two years in private practice in the Washington office of O’Melveny & Myers. Republican senators say Liu’s academic writings show a liberal bias he wouldn’t be able to put aside as a judge.

“When it comes to just a proud advocate for judicial activism, you couldn’t, from the left wing point of view, do any better,” Levey said.

Also at issue is the concluding paragraph of Liu’s 2006 testimony against the confirmation of Justice Samuel Alito Jr. Under questioning during two confirmation hearings, Liu expressed regret over the wording and said the paragraph showed poor judgment on his part.

Some Republican lawyers, including former U.S. solicitor general and former Whitewater prosecutor Kenneth Starr, have endorsed Liu’s confirmation. John Yoo, a law school colleague who wrote controversial memos during the Bush administration about interrogation, has praised Liu’s qualifications.

Liu’s nomination is of particular concern to the Asian-American bar, which has lobbied for a more diverse federal judiciary. Liu would be one of two active federal appeals judges who is Asian-American and the sole Asian-American on the 9th Circuit, where 44% of Asian-Americans live, said Vincent Eng, a principal in the Washington lobbying firm The Raben Group. Eng’s clients include the National Asian Pacific American Bar Association.

Eng said that Liu has demonstrated he’s at the top of his field at every stage of his career. “He was able to adapt and understand the role of each job and excel at it, and there’s no reason to think he’s not going to do the same when he becomes a judge,” Eng said.

Comments

Actually, Kent, no--the Fortas filibuster had nothing to do with the Wolfson retainer, which was the matter that caused Fortas's resignation. Fortas did not resign over the fee he received from American University, which did come up during his hearings for elevation to Chief Justice.

No matter--the American U. fee was not the reason for the filibuster. The pro-civil rights rulings of the Warren Court were the reason.

The politicization of the judicial nomination process was always there to some extent but was greatly increased by the Reagan Administration in the early '80s. This is not a value judgment. It is a matter of what happened. Since then, Republicans were more one note on this issue, but the difference (at least apart from the Supreme Court) isn't enough to likely convince strong believers.

Liu has some top conservative legal minds on his side. If he can't get an up/down vote, who would?

No matter who fired the first shot, can anyone honestly say that Liu's thinking and brainpower are not at least on a par with ... Clarence Thomas? (There's someone who got an up-or-down vote, and whose ideas are way, waaay out there, even compared to all his peers on the federal bench.)

I'm a Republican, but I am really tired of the games while the bench remains under-filled.

It's put up or shut up time. If they oppose cloture, senators should actually be required to filibuster. Stay standing all night reading the phone book like principled people; don't just threaten it. Vote against cloture, and if you believe what you say, filibuster.

Actually, Darren, the beginning of "judge wars" really goes back to the Republicans' attack on Fortas's ascendancy to Chief in 1968. Bork and Thomas, both of whom got votes (as Michael notes), came much later.

Bork and Thomas had up or down votes; neither was filibustered. Liu should get the same treatment, particularly in light of the compromise over judicial nomination filibusters reached during the Bush presidency that resulted in a vote on Judge Pryor. Absent the compromise, Judge Pryor's nomination would have died in a filibuster.

No, Rick, the GOP didn't start this war. The Dems did, first with Bork, and then with Clarence Thomas. What has happened subsequently, including filibusters, is simply the escalation of arms that has occurred in all of history's major wars.

Liberals can't now credibly portray themselves as pacifist victims. Led by the likes of ill-temepred ideologue Ted Kennedy, the left wrote the book on conspiring with like-minded interest groups to attack conservative nominees in the press for months in advance of hearings and otherwsie politicizing the process well beyond what had been traditional bounds. Liu and his supporters are now merely reaping what their ilk has sown.

Disagree...Estrada would have likely been confirmed after the Gang of 14 compromise...He withdrew his nomination before that agreement was formed....

Let's remember something...All this judicial blockcading started in the Clinton admin where republican blocked countless nominees - 45 to be exact...Democrats have always played fair w/republican nominees...And don't bring up Mr. Bork, he was never filibustered...He had a SJC hearing and a full senate vote...He was defeated soundly (58-42), even 6 republicans voted against him..